Madras High Court
M/S. Reliance General Insurance ... vs Chinnaponny on 18 August, 2021
C.M.A.No.1259 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.08.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.No.1259 of 2016 &
CMP.No.9604 of 2016
M/s. Reliance General Insurance Company Limited,
Sony Building, II floor,
Harida Tower, No.963,
Avinashi Road, Coimbatore ... Appellant
Vs
1.Chinnaponny
2.Yuvarani
3.Damodarakannan
4.Gopalakannan (Minor)
5.Gomathy (Minor)
Respondents 4 & 5 minors rep.
by mother & next friend 1st
respondent)
6.K.Murugan
7.Subramani ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act 1988 against the Judgment and decree in
MCOP.No.527 of 2012 dated 21.01.2016 on the file of the Motor Accident
Claims Tribunal, Special District Court, Salem.
1/10
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1259 of 2016
For Appellant : Mr.E.Rajadurai,
for Mr.N.Vijayaraghavan
For Respondents 1 to 5 : Mr.Manojin
for Mr.L.Chandrakumar
For Respondent 7 : No appearance
JUDGMENT
(Heard through video conferencing)
This civil miscellaneous appeal has been filed by the Insurance
company challenging the award dated 21.01.2016 passed by the Motor
Accident Claims Tribunal (Special District Court, Salem) in MCOP.No.527
of 2012.
2. The Appellant insurance company has challenged the impugned
award on the following grounds (a) the respondents 1 to 5 / claimants have
not proved negligence as regards the rider of the insured vehicle and (b) the
quantum of compensation awarded by the Tribunal to the respondents 1 to
5/claimants is excessive.
3. The Tribunal under the impugned award directed the
Appellant/Insurance company to pay the respondents 1 to 5/claimants a
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1259 of 2016
compensation of Rs.7,44,000/- together with interest and costs as detailed
hereunder:
Heads Award Amount
(Rs.)
Loss of dependency 6,24,000/-
(6000 – 1/3 = 4000 x 12 =
48,000 x 13)
Loss of consortium to the first 25,000/-
respondent
Loss of love and affection to the 10,000/-
second respondent
Loss of love and affection to the 60,000/-
respondents 3 to 5
Funeral Expenses 25,000/
Total 7,44,000/-
4. The accident happened on 24.03.2012 which resulted in the death
of pillion rider, Rajendran in the insured motor cycle bearing registration
No.TN30-AB-4491. The claim was filed by the respondents 1 to 5/claimants
seeking compensation before the Tribunal under Section 166 of the Motor
Vehicles Act. As per section 166 of the Motor Vehicles Act, the claimant
must prove the negligence against the offending vehicle for the purpose of
getting compensation. In the case on hand, two vehicles were involved in
the accident namely, one insured motor cycle bearing registration No.TN30-
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1259 of 2016
AB-4491 and the other motor cycle which was coming from the opposite
direction bearing registration No.TN30-BY-1454.
5. FIR (Ex.P1) was registered only against the rider of the motor
cycle bearing registration No.TN30-BY-1454 which was coming from the
opposite direction. The Police after investigation have also filed the final
report only as against the rider of the opposite vehicle bearing registration
No.TN30-BY-1454 and the said final report of the Police was marked as
Ex.X1 before the Tribunal.
6. This Court has also perused and examined the rough sketch
submitted by the Police which has been marked as Ex.X2 before the
Tribunal. The Rough Sketch also indicates that it was only the opposite
motor cycle bearing registration No.TN30-BY-1454 which was at fault and
not the insured motor cycle bearing registration No.TN30-AB-4491.
However, contrary to FIR as well as the final report, a person by name
Nachimuthu who has deposed before the Tribunal on behalf of the claimants
as PW2, has claimed that he was an eye-witness to the accident and deposed
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1259 of 2016
that it was only the rider of the insured motor cycle which was at fault.
Excepting for the deposition of PW2 which contradicts the FIR, final report
as well as the Rough Sketch submitted by the Police, no other evidence has
been produced by the claimants to prove that the rider of the motor cycle
bearing registration No.TN30-AB-4491 was at fault.
7. The evidenciary value of the FIR which was given at the earliest
point of time, followed by the final report as well as rough sketch, is far
greater than the deposition of PW2 who claims to be an eye-witness to the
accident. No evidence is also available on record to show that PW2 was
present at the scene of the accident. Hence, it is absolutely clear that the
opposite vehicle bearing registration No.TN30-BY-1454 is alone at fault
and not the insured motor cycle bearing registration No.TN30-AB-4491.
The Appellant has conclusively proved through oral and documentary
evidence that the motor cycle insured with the Appellant bearing
registration No.TN30-AB-4491 was not at fault. However, by the impugned
award, the Tribunal has erroneously given a finding by total non-application
of mind to the evidence available on record that the rider of the motor cycle
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1259 of 2016
bearing registration No.TN30-AB-4491 is alone at fault and held the
Appellant Insurance company liable to pay the assessed compensation.
8. However it is settled law as laid down by various decision of this
Court including the judgment dated 26.02.2021 passed in CMA.No.1354 of
2017 that a claim even though filed under section 166 of the Motor Vehicles
Act where negligence will have to be proved can be converted into a claim
under section 163A of the Motor Vehicles Act where negligence need not
be proved. In the case on hand, the respondents 1 to 5/claimants have not
proved negligence as against the insured motor cycle. But however, this
Court is of the considered view by applying the settled law, the claim can be
converted into a claim under section 163A of the Motor Vehicles Act.
However, under Section 163A of the Motor Vehicles Act, compensation
will have to be paid in accordance with schedule II fixed under the Motor
Vehicles Act. If the said schedule is applied, this Court is of the considered
view that the respondents 1 to 5/claimants will be entitled for the
compensation in accordance with Schedule II of the Motor Vehicles
Act. Accordingly, the claim is converted into a claim under section 163A of
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1259 of 2016
the Motor Vehicles Act and the impugned award is hereby set aside and this
Court redetermines the compensation under section 163A of the Motor
Vehicles Act to the respondents 1 to 5/claimants as detailed hereunder:
Heads Award Amount
(Rs.)
Loss of dependency 3,46,666/-
Funeral Expenses 2,000/-
Loss of Consortium 5,000/-
Loss of Estate 2,500/-
Total 3,56,166/-
9. In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation payable to the respondents 1 to 5/claimants is
redetermined as Rs.3,56,166/- by this Court.
10. It is represented by the learned counsel for the Appellant
Insurance company that the Insurance Company has already deposited the
entire amount to the credit of MCOP.No.527 of 2012. Since this Court has
modified the award and the entire amount has already been deposited by the
Appellant Insurance Company, the Appellant Insurance Company is
permitted to withdraw the excess amount deposited by them before the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1259 of 2016
Tribunal by filing appropriate application.
11. The Tribunal shall transfer the respective shares of modified
award amount as per the ratio of apportionment made by the tribunal,
together with accrued interest to the bank account of the respondents 1 to
3/claimants through RTGS within a period of one week from the date of
receipt of a copy of this Judgment. Since the respondents 4 & 5 are minors,
their respective shares of award amount shall be deposited in interest
bearing fixed deposit in any one of the Nationalised Banks till they attain
the age of majority. The mother of the minor respondents 4 & 5 are
permitted to withdraw the interest accrued once in six months for the
welfare of the minors. If the minor respondents 4 & 5 attain the age of
majority, it is open for them to file a formal petition to declare them as
major. No costs. Consequently, connected miscellaneous petition is closed.
18.08.2021
nl
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1259 of 2016
Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
To
1. The Special District Court, Salem
2.The Record Section,
High Court of Madras
ABDUL QUDDHOSE, J.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1259 of 2016
nl
C.M.A.No.1259 of 2016
18.08.2021
https://www.mhc.tn.gov.in/judis/
